William Lund et al v. 3M Company et al

Filing 255

ORDER DENYING DEFENDANTS MOTION TO DISMISS WITHOUT PREJUDICE 131 AND GRANTING PLAINTIFFS REQUEST FOR LIMITED JURISDICTIONAL DISCOVERY by Judge Dean D. Pregerson. (lc). Modified on 7/3/2013 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WILLIAM LUND, an individual;
VICTORIA LUND, an
individual,

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Plaintiffs,

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v.

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3M COMPANY a/k/a MINNESOTA
MINING & MANUFACTURING
COMPANY, et al.,

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Defendants.

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___________________________

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Case No. CV 13-02776 DDP (VBKx)
ORDER DENYING DEFENDANT’S MOTION
TO DISMISS AND GRANTING
PLAINTIFFS’ REQUEST FOR LIMITED
JURISDICTIONAL DISCOVERY
[Dkt. No. 131]

Presently before the court is Defendant’s Motion to Dismiss

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Plaintiffs’ Complaint (“Motion”).

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moving papers, the court denies the Motion without prejudice,

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grants Plaintiffs’ request for jurisdictional discovery, and adopts

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the following Order.

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I.

Having reviewed the parties’

BACKGROUND

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Plaintiff William Lund alleges that he suffers from

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mesothelioma as a result of asbestos exposure during his time

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working for the U.S. Navy from 1958 to 1977.

(Complaint ¶ 6.)1

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All references are to the original Complaint. While there is
(continued...)

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During his time in the Navy, Mr. Lund handled asbestos-containing

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products.

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products occurred on a variety of Navy ships, some of which were in

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California.

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gaskets, packing, and millboard containing asbestos provided by

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Niantic Seal, Inc. (“NSI”), individually and as a successor-in-

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interest to Niantic Rubber Company and Northeast Rubber Products,

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Inc.

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(Compl. ¶ 6.)

Mr. Lund alleges that his work with these

(Compl. ¶ 6.)

Mr. Lund alleges that he handled

(Compl. ¶ 8.)
NSI moves to dismiss the Complaint against it based on a lack

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of personal jurisdiction.

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jurisdictional discovery to determine whether the Defendants have

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sufficient California contacts.

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II.

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In response, Plaintiffs seek

LEGAL STANDARD
When a defendant moves to dismiss for lack of personal

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jurisdiction, the plaintiff bears the burden of demonstrating that

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the court has jurisdiction over the defendant.

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Caddy, F.3d 1151, 1154 (9th Cir. 2006).

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jurisdiction over a defendant, a plaintiff must show that personal

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jurisdiction is (1) permitted under the applicable state’s long-arm

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statute and that (2) the exercise of jurisdiction does not violate

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federal due process.

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personal jurisdiction on any basis not inconsistent with the

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Constitution.

Id.

Pebble Beach Co. v.

To demonstrate a court’s

California’s long-arm statute allows

Cal. Code. Civ. Pro. § 410.10.

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(...continued)
a First Amended Complaint, it was never filed in state court
because the complaint was amended via Order. (Docket No. 1.)
amendment changed defendant Elementis Chemicals, Inc., f/k/a
Harcross Chemical, Inc., to Elementis Chemicals, Inc., f/k/a
Harcross Chemical, Inc., individually and as a successor in
interest to Harrisons & Crossfield (Pacific) Inc.
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The

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A federal district court may exercise either general or

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specific jurisdiction over a non-forum defendant.

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Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 (1984).

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Demonstrations of general or specific jurisdiction require that the

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plaintiff make a prima facie showing of jurisdictional facts, facts

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that if taken as true would support jurisdiction and withstand the

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motion to dismiss.

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See Helicopteros

Id.

Any disputed facts for the purposes of the motion to dismiss
are construed in favor of the plaintiff.

Id.

However, a court may

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permit discovery to help determine whether it has personal

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jurisdiction, especially in circumstances where pertinent facts are

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controverted.

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F.2d 1280, 1285 n.1 (9th Cir. 1977).

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III. DISCUSSION

Data Disc, Inc., v. Systems Tech. Assoc. Inc., 557

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A.

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The standard for establishing general jurisdiction requires

Personal Jurisdiction

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that the defendant have sufficient contacts to “constitute the kind

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of continuous and systematic general business contacts that

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‘approximate physical presence.’”

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Shivnath Rai Harnarain Co., 284 F.3d 1114, 1124 (9th Cir.

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2002)(citing Bancroft & Masters, Inc. v. Augusta National Inc., 223

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F.3d 1082, 1086 (9th Cir. 2000)).

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analyzing general jurisdiction include whether the defendant “makes

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sales, solicits, or engages in business in the state, serves the

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state's markets, designates an agent for service of process, holds

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a license, or is incorporated there.”

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Even with many of these factors present, courts have found general

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jurisdiction lacking.

Glencore Grain Rotterdam B.V. v.

Factors taken into account when

Bancroft, 223 F.3d at 1086.

See, e.g., Helicopteros, 466 U.S. at 408
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(holding that a Colombian corporation was not subject to general

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jurisdiction in Texas even though the company negotiated a deal,

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purchased helicopter parts, trained pilots, and had bank accounts

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in Texas).

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More often, a court can exercise specific jurisdiction over a

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nonforum defendant if the defendant’s contacts with the state are

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the basis of the present claim.

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Motor Co., 374 F.3d 797, 801-02 (9th Cir. 2004).

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Circuit law, a court may exercise specific jurisdiction over a

Schwarzenegger v. Fred Martin
Under Ninth

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nonresident defendant when: (1) a defendant purposefully directs

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her activities or consummates some transaction with the forum or

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resident thereof, or performs some act by which she purposefully

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avails herself of the privilege of conducting activities in the

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forum, thereby invoking the benefits and protections of its laws;

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(2) the plaintiff’s claim arises out of or relates to the

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defendant’s forum related activities; and (3) the exercise of

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jurisdiction comports with fair play and substantive justice, i.e.

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it must be reasonable.

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Id.

Defendant NSI alleges that it is not incorporated in

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California; does not have its principal place of business here; and

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does not have employees, branches, bank accounts, or even any

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officers domiciled here.

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(“Mauro Decl.”).)

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that would grant this Court the ability to exercise jurisdiction

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over the Defendant.

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be sufficient to dismiss the claim for lack of personal

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jurisdiction; however, the Plaintiffs point out inconsistencies

(See Declaration of Edmund M. Mauro III

Nowhere do the Plaintiffs allege specific facts

Normally, Plaintiffs’ failure to do so would

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between Mr. Mauro’s testimony and NSI’s website giving this Court

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reason to grant jurisdictional discovery.

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B.

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A court may grant jurisdictional discovery when “pertinent

Jurisdictional Discovery

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facts bearing on the question of jurisdiction are controverted or

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where a more satisfactory showing of the facts is necessary.”

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Borschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008).

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is, if more facts are needed to determine jurisdiction, a granting

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of jurisdictional discovery is proper.

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That

Laub v. U.S. Dep’t of the

Interior, 343 F.3d 1080, 1093 (9th Cir. 2003).

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Here, Plaintiffs ask the court to allow discovery based on

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factual inconsistencies between Mr. Mauro’s testimony and NSI’s

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website.

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relationship with Northeast Rubber Products Inc.

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website advertises Northeast Rubber Products, Inc. as a division of

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NSI.

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seal/about-niantic-seal/default.html, Exhibit “B” to the

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Declaration of Tiffany S. Woods.)

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NSI was created in 2006 and did not exist in the 1950s-1970s;

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however, NSI’s website claims it has been providing services “[f]or

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over 47 years”, meaning that NSI, or one of its predecessors, could

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have been the company responsible for producing the asbestos-

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containing products that William Lund encountered between 1958 and

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1977.

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seal/products/default.html, Exhibit “A” to the Declaration of

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Tiffany S. Woods.)

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Mauro’s silence in his affidavit about NSI’s subsidiaries’,

First, Mr. Mauro claimed that NSI does not have a
However, NSI’s

(See Mauro Decl. ¶ 11; http://www.inscogroup.com/niantic-

Second, Mr. Mauro claimed that

(See Mauro Decl. ¶ 11; http://www.inscogroup.com/niantic-

In addition, the Plaintiffs point to Mr.

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including Niantic Rubber Company and Northeast Rubber Products,

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Inc., connections to California.

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The inconsistencies support a finding that more facts are

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needed to determine jurisdiction, especially in light of the

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absence of any discussion regarding NSI as a successor-in-interest

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to Niantic Rubber Company and Northeast Rubber Products, Inc.

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addition to clarifying NSI’s relationship with California,

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jurisdictional discovery may also shed light on two issues:(1)

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whether NSI is a successor-in-interest or parent company to either

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Niantic Rubber Company or Northeast Rubber Products, Inc. and (2)

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whether Niantic Rubber Company or Northeast Rubber Products, Inc.

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have sufficient California contacts that, if able to be imputed to

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NSI, would allow this court to exercise personal jurisdiction over

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NSI.

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(10th Cir. 1991).

In

Williams v. Bowman Livestock Equip. Co., 927 F. 2d 1128, 1132

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Therefore the court finds that 90 days of discovery related to

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this court’s exercise of personal jurisdiction over NSI2, Northeast

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Rubber Products, Inc., and Niantic Rubber Company is appropriate.

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IV.

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CONCLUSION
For the above reasons, Defendant Niantic Seal, Inc.’s motion

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to dismiss is DENIED, without prejudice.

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Plaintiffs William and Victoria Lund 90 days from the date of this

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order to conduct jurisdictional discovery.

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Inc. continue to challenge personal jurisdiction on its own behalf

The court grants

Should Niantic Seal,

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Although NSI appears to have brought this motion on behalf of
itself and not as a successor-in-interest, the motion raises
sufficient questions about the three companies that the court finds
it appropriate to grant jurisdictional discovery with respect to
all three.
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and/or as a successor-in-interest to either Niantic Rubber Company

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and Northeast Rubber Products, Inc., it shall renew its motion to

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dismiss within two weeks of the conclusion of the jurisdictional

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discovery period.

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IT IS SO ORDERED.

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Dated: July 3, 2013
DEAN D. PREGERSON
United States District Judge

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